Between the Scylla and Charybdis: physicians and the clash of liability standards and cost cutting goals within accountable care organizations

This article seeks to examine the conflict between non-cost-conscious medical malpractice liability standards and health care cost cutting measures within the context of Accountable Care Organizations ("ACOs") under the new health care reform law. This article begins by providing an overview of the high level of health care spending within the United States health care system in order to provide a context for better understanding policymakers' push for cost cutting measures, including ACOs. This article then examines the tension between cost containment efforts and medical liability standards through an examination of the "stuck in the middle" mentality that physicians face when they are forced to meet both liability standards that do not take into account cost concerns and cost cutting standards imposed by or through managed care organizations, pay-for-performance programs and consumer-driven healthcare. This article then introduces the concept of the ACO and describes elements of the ACOs envisioned under the new health care reform legislation. This article concludes by examining and analyzing whether and how ACOs will exacerbate the cost containment/liability standard tension, and how that tension may impact the effectiveness of ACOs.     

Applying antitrust law to nonprofit healthcare entities: arguments for a greater attention to detail

This Article begins with an antitrust primer, then analyzes the appropriate application of antitrust principles to nonprofit healthcare providers. In light of the inherent charitable character of nonprofit healthcare providers, the author contends that the government and the courts should accord some deference to nonprofit hospitals when they are seeking approval of mergers. To date, this has not generally been the case, although a few recent court decisions have rested their approval of mergers, in part, upon the nonprofit character of the merging entities. The author, in particular, believes the paradigmatic local nonprofit hospital with a community board is less likely than a for-profit hospital to abuse any market power that it may obtain through a merger; consequently, any such merger should not be analyzed solely under the traditional presumptions of antitrust jurisprudence. Rather, the premerger analysis should involve meaningful consideration of the hospital's charitable character.     

Compulsory licensing and interim measures in Merck: a case for Italy or for antitrust law?

Legal context: This paper examines an important decision of the Italian CompetitionAuthority in a case concerning the compulsory licence of IPrights. The oddity of the case lies in the fact that the dominantposition of the defendant seemed to be due, rather than to thefact that the latter held certain IP rights, to a peculiar defacto situation. Key points: As a result, the competition authority did not apply the testthat is traditionally used in cases of abuses involving IP rights,but the plain ‘essential facilities’ doctrine. Practical significance: The case shows that the borderline between these two types ofabuses is a difficult one to draw, and more generally that thecomplex relationship between competition law and IP is in needof clarification. The paper also deals with the issue, raisedby the same case, of whether, in the absence of national provisionto this effect, national competition authorities have any powerto issue interim measures.     

Health care report cards: implications for vulnerable patient groups and the organizations providing them care

Standardized public reporting on the quality of health care (report cards) offers an opportunity to empower purchasers and consumers so that they can make choices that can result in better health care for less money. However, not all population subgroups are equally well served by the publication of such data. In particular, vulnerable patient groups such as the poor, the less educated, the chronically sick, and members of ethnic or linguistic minorities may find issues of importance to them largely neglected. In addition, the way that report card data are collected, analyzed, and presented may further marginalize the experiences of these groups who in any case are already underserved by the health system. This observation also has important implications for health care providers who serve primarily large numbers of vulnerable patients. The differential impacts of report card data on vulnerable patient groups (and their providers) need to be addressed by researchers and policy makers if access issues are not to be damaged further by the providers' pursuit of quality and value.     

Private credentialing of health care personnel: an antitrust perspective. Part One

This Article explores the antitrust and other implications of private credentialing and accrediting programs in the health care industry. Although such programs are usually sponsored by powerful competitor groups, they serve the procompetitive purpose of providing useful information and authoritative advice to independent decision makers. Part One examines the risk that credentialing will sometimes be unfair to competitors and deceive consumers. Its survey of common-law, antitrust, and regulatory interventions to correct such unfairness and deception seeks to determine the degree of oversight to which credentialing and similar activities have been and should be subjected. In recommending that judicial or regulatory scrutiny should be limited to discovering whether standards and practices have a rational relation to a procompetitive purpose, the Article argues that greater intrusion into credentialing schemes would be inconsistent with market theory and first amendment values and would discourage line-drawing efforts that stimulate competition and facilitate consumer choice. By emphasizing throughout that personnel certification and institutional accreditation embody ideology and opinion as well as factual information, Part One sets the stage for the argument in Part Two that antitrust law can and should be used to contest the dominance of a single ideology of health care and to facilitate the development of alternative sources of consumer information. The Article's overall thesis is that, whereas the quality of advice given to the public about health care personnel and similar matters should not be closely regulated, neither should the supply of competing information and opinion be artificially curtailed.